Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02339-RPM

Document 174

Filed 10/20/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-M-2339(MJW) JOHN HIMMLER, individually and on behalf of his minor son, and JACOB HIMMLER, a minor Plaintiffs, vs. ELODE BRODBECK, an individual, RICHARD MANGEN, an individual, DAVID KIEFFER, an individual, PATRICIA ANN PHILLIPS, an individual, CHILD AND FAMILY CENTE,R INC., a Colorado Corporation, and BEHAVIORAL ASSOCIATES, INC., a Colorado Corporation, Defendants. ______________________________________________________________________________ DEFENDANT MANGEN'S RESPONSE TO PLAINTIFFS' MOTION TO VACATE ______________________________________________________________________________ Defendant Richard Mangen, Psy.D. ("Dr. Mangen"), by his attorneys, responds to Plaintiffs' Motion to Vacate the Bill of Costs hearing as follows: 1. First, Plaintiffs state that Dr. Mangen erred in submitting his Bill of Costs because

the Court's Order did not state that "which party or parties are entitled to costs." On September 30, 2005, this Court entered an Order, ruling that "the defendants' motions submitted under F.R.Civ.P. 12(b)(6) are granted." Defendants. 2. Fed.R.Civ.P. 54(d)(1) in its relevant parts states that "costs other than attorneys' The Order dismissed all of Plaintiffs' claims against

fees shall be allowed as of course to the prevailing party unless the court otherwise directs." As the prevailing party, Dr. Mangen is entitled to recover costs. Thus, Dr. Mangen properly

Case 1:03-cv-02339-RPM

Document 174

Filed 10/20/2005

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submitted his Bill of Costs and scheduled a hearing with the Clerk of the Court for November 3, 2005.1 3. Second, Plaintiffs state that counsel for Dr. Mangen did not file a written

statement that a reasonable effort has been made to resolve disputes regarding costs prior to the hearing. On October 14, 2005, Dr. Mangen's counsel sent a letter to Plaintiff Himmler to confer about the Bill of Costs. See Exhibit A, letter dated 10/14/05 (redacting the portion discussing settlement). Dr. Mangen's counsel told Plaintiff Himmler to call him because he did not have Plaintiff Himmler's phone number. To date, Plaintiff Himmler has not called him. In any event, Dr. Mangen will file a written statement prior to the November 3, 2005 hearing. D.C.Colo.L.Civ.R. 54.1. 4. Third, Plaintiffs state that "Counsel for Defendant Mangen has requested costs See

outside of those enumerated in 28 U.S.C. § 1920." It is premature for Plaintiffs to make their objections to the costs. Plaintiffs are free to object during the hearing with the Clerk and then file an objection with this Court following the Clerk's award. See Fed.R.Civ.P. 54(d)(1). WHEREFORE, Dr. Mangen requests that this Court deny Plaintiffs' Motion to Vacate. Dated this 20th day of October, 2005. s/ David H. Yun David H. Yun JAUDON & AVERY LLP 1660 Wynkoop Street, Suite 1010 Denver, CO 80202 Phone: (303) 832-1122 Fax: (303) 832-1348 Email: [email protected] Attorneys for Defendant Richard Mangen
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The hearing with the Clerk was originally scheduled for October 27, 2005 at 9:00 a.m. It has been rescheduled to November 3, 2005 at 9:00 a.m. 2

Case 1:03-cv-02339-RPM

Document 174

Filed 10/20/2005

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CERTIFICATE OF SERVICE I hereby certify that on October 20, 2005, I electronically filed the foregoing DEFENDANT MANGEN'S RESPONSE TO PLAINTIFFS' MOTION TO VACATE with the Clerk of the United States District Court for the District of Colorado using the CM/ECF system which will send notification of such filing to the following: Trevor L. Cofer, Esq. [email protected] Thomas N. Alfey, Esq. [email protected] Peter S. Ely, Esq. [email protected] John and Jacob Himmler, pro se 825 9th Street Berthoud, CO 80513 s/ Olivia Erkhart

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